TELEWORK UNDER THE ADA & OTHER NONDISCRIMINATION LAWS | OCTOBER 2016 | AUTHORS Peter Petesch Denise M. Visconti Corinn Jackson Meryl Rosenthal, CEO of FlexPaths FLEXPATHS® Making Your People Matter IMPORTANT NOTICE This publication is not a do-it-yourself guide to resolving employment disputes or handling employment litigation. Nonetheless, employers involved in ongoing disputes and litigation will find the information useful in understanding the issues raised and their legal context. The Littler Report is not a substitute for experienced legal counsel and does not provide legal advice or attempt to address the numerous factual issues that inevitably arise in any employment-related dispute. Copyright ©2016 Littler Mendelson, P.C. All material contained within this publication is protected by copyright law and may not be reproduced without the express written consent of Littler Mendelson. Table of Contents SECTION/TOPIC PAGE I. INTRODUCTION 1 A. Workplace Flexibility is on the Rise 2 B. Forces Driving Telework Are Expanding 2 C. Business Advantages 3 II. THE ADA & OTHER NON-DISCRIMINATION LAWS 4 A. ADA Consideration 4 1. Reasonable Accommodation Concepts Under the ADA 5 a. Emphasis on Essential Job Functions 7 b. Limited Deference to Employers’ Job Descriptions 8 c. Undue Hardship Principles 9 d. Threat to Safety or Health 9 2. Claims for Failure to Provide a Reasonable Accommodation 9 a. Employer Obligations 9 b. Employee Obligations 11 3. Other Accommodation & ADA Nondescrimination Principles 12 a. Altering Policies to Effect an Accommodation 12 b. Confidentiality Issues & Addressing the Concerns of Other Employees 12 c. Telework & Enabling the Employee to Enjoy the “Benefits and Privileges of Employment” 12 d. Making Existing Facilities Accessible to Employees with Disabilities 13 4. The Development of Telecommunting as a Reasonable Accommodation 13 a. Earlier Cases Siding Against Telecommuting 13 b. EEOC v. Ford Motor Company & Shifting Views on Telecommuting 16 B. Family Responsibilities Considerations 18 1. Potential Bases of Discrimination Against Workers with Caregiving or Family Responsibilities 19 2. Reducing the Risk of Claims for Unlawful Disparate Treatment of Caregivers 21 III. POTENTIAL IMPACTS OF TELECOMMUTING ARRANGEMENTS 21 A. The Business Case v. Potential Impact on Resources 21 IV. CONCLUSION 22 LABOR & EMPLOYMENT ISSUES FACING THE HEALTHCARE INDUSTRY I. INTRODUCTION A workforce that adheres to a traditional work style, or a consistent eight-hour workday in the same location – with no offsite work or interaction with business colleagues or customers – is increasingly becoming a relic in many settings. Whether at a coffee house, commuter train, airport lounge, or soccer field, transactions, communications, and decisions take place on a range of devices away from the brick-and-mortar jobsite. This very Report is a telework collaboration of individuals exchanging ideas and drafts from homes, offices, and other sites around Washington, D.C., San Diego, Los Angeles, New Jersey and Milan, Italy. The terms “telecommuting” and “telework” came to prominence in the 1990s to describe full-time employment at a private, non-profit or government organization where the employee worked at least half the time at home. Early on, telecommuting and telework served mainly as an accommodation to working parents, providing an opportunity to work part-time or irregular hours in response to family demands. Alternatively, telework was associated with specific job types (e.g., call centers). Over time, the terminology and definitions morphed to include, among others: mobile, remote, flexible, virtual, dispersed, agile, and distributed work. It applies to a wider range of workers at every business level. The rationale or need for such arrangements has also adapted. As discussed in later sections, while flexible work arrangements increasingly can support employees with child care, elder care and disability accommodation needs, among others. They can also provide employees with the opportunity to pursue community involvement, volunteerism, education and travel, and eliminate inefficiencies associated with commuting time in congested urban areas. In settings conducive to telework, it can also trim overhead costs associated with office space. Admittedly, it does not and cannot work in every conceivable setting. “Agile work,” however, has become a mainstream discussion at water coolers and dinner tables, regardless of generation, gender, age, lifestyle, and socio-economic status. 1 COPYRIGHT ©2016 LITTLER MENDELSON, P.C. LABOR & EMPLOYMENT ISSUES FACING THE HEALTHCARE INDUSTRY In this first in a series of Littler Reports on Telework, we discuss the evolution of telework, practical considerations for employers, and certain legal implications — particularly involving employee requests to work remotely as an accommodation under the Americans with Disabilities Act (ADA) and similar state laws. A. Workplace Flexibility is on the Rise Key drivers of the growth of flexible work practices across geography and industry sectors include, but are not limited to, improved ability to leverage technology, increased globalization of the workforce, need to mitigate heavy workload/turnover, and the entry and impact of millennials in the workforce. To date, “the push for flexibility has been strongest in North America and Europe.”1 More recently, there has been a greater drive for flexibility in countries including India, in particular, among emerging economies in which heavy workloads contribute to employee burnout.2 Commentators expect that employers across Asia (including China, Singapore and Hong Kong) will embrace it as they strive to compete globally.3 Reliance on agile work is on the rise. A recent Gallup poll reports that 37 percent of Americans have worked from home.4 Intuit reports that by 2020, more than 40 percent of the American workforce, or more than 60 million people, will be freelancers, contractors, and temp workers.5 According to an Ipsos/Reuters poll, approximately “one in five workers around the globe, particularly employees in the Middle East, Latin America and Asia, telecommute frequently and nearly 10 percent work from home every day.”6 In the UK, for example, 94 percent of larger organizations offer agile work in some respect.7 In half of such institutions, flexible arrangements have become standard practice and management widely expects flexible work to become the norm within five years.8 In more than 80% of companies, the most prevalent types of agile programs offered to employees are teleworking, flextime and part-time scheduling.9 In a 2012 study, 47 percent of the global sample group of employees reported that they teleworked or had some other flexible arrangement.10 In most organizations across the globe, regardless of size, some form of non-traditional work is or soon will be taking place. B. Forces Driving Telework Are Expanding As agile work spreads, the following workplace trends create growing opportunities for managers, teams and employees. • Technological Advances: Rapid advancement of digital technology provides easier access to work and information (e.g., wifi, cloud access, smartphones, laptops, virtual desktops, and paperless document systems). These advancements provide greater ease in transacting business at any time. 1 PricewaterhouseCoopers LLC, A Flex-able Future: Integrating Flexibility at Financial Institutions, at 2 (Nov. 2014), http://www.pwc.com/us/en/ financial-services/publications/viewpoints/assets/pwc-workplace-flexibility-integration-financial-institutions.pdf. 2 Id. 3 Id. 4 Jeffrey M. Jones, In U.S., Telecommuting for Work Climbs to 37%, Gallup (Aug. 19, 2015), http://www.gallup.com/poll/184649/telecommuting- work-climbs.aspx (noting a four-fold increase in this figure since 1995). 5 Intuit, Intuit 2020 Report: Twenty Trends That Will Shape the Next Decade, at 20–21 (Oct. 2010), https://http-download.intuit.com/http.intuit/ CMO/intuit/futureofsmallbusiness/intuit_2020_report.pdf; see also Mitra Toossi, Labor Force Projections to 2020: A More Slowly Growing Workforce, Monthly Labor Review, Bureau of Labor Statistics, Jan. 2012, at 1 (projecting the labor force in 2020 to total 164.4 million). 6 Patricia Reaney, About One in Five Workers Worldwide Telecommute: Poll, REUTERS (Jan. 24, 2012), http://www.reuters.com/article/us- telecommuting-idUSTRE80N1IL20120124 (reporting that more than half of Indian workers toiled from home). 7 Institute of Leadership & Management, 2020 Vision: Future Trends in Leadership & Management, at 2 (May 2014), https://www.i-l-m.com/~/ media/ILM%20Website/Documents/research-reports/future-trends/ilm-research-reports-future-trends%20pdf.ashx. That being said, the use of flex work is not increasing at the same pace across all UK workforces but remains prevalent with larger employers. Id. 8 Id. 9 WorldatWork, Survey on Workplace Flexibility 2013, at 5 (Oct. 2013), https://www.worldatwork.org/adimLink?id=73898. 10 Towers Watson, 2012 Global Workforce Study, Engagement at Risk: Driving Strong Performance in a Volatile Global Environment, at 6 (July 2012), https://www.towerswatson.com/Insights/IC-Types/Survey-Research-Results/2012/07/2012-Towers-Watson-Global-Workforce-Study. COPYRIGHT ©2016 LITTLER MENDELSON, P.C. 2 LABOR & EMPLOYMENT ISSUES FACING THE HEALTHCARE INDUSTRY • Flow of Work: To be truly customer- and task-centric, jobs and tasks are being broken down to allow work to stream more effectively across time zones and elicit inputs in a more logical or efficient sequence.11